Does Police Officer’s Intent Determine Whether Arrest Occurred?

There are several Ohio Courts which have rendered an opinion that the officer’s subjective intent in taking the action he took is important. But the United States Supreme Court has ruled the other way.

Let’s set the stage for this issue.

You get pulled over for having an improperly illuminated license place at three in the morning. The police officer walks up to your car, orders you out with gun drawn and pointed at you. You immediately comply, he puts you in handcuffs and sits you in the back of his police cruiser until some other officers arrive who are better at administering the field sobriety tests than the first officer.

Your attorney is going to argue that the arrest took place when the first officer pointed his gun at you, put you in handcuffs, and locked you in the back of his car. The prosecutor is going to argue that the police officer’s intent in doing these things was not to arrest you, but just to keep you safe until his fellow officers got there so that they could test you. The issue is, should the police officer’s subjective intent matter?

Your attorney should have the better of this argument. In the case of Berkemer v. McCarty (1984), 468 U.S. 420, a suspect was pulled over by the Ohio Highway Patrol. During the traffic stop, the officer asked him if he had been drinking earlier. The suspect unwisely answered this question, stating that he had consumed two beers and smoked some pot. The officer then told him he was under arrest, put him in the back of the patrol car and took him to jail, where more questioning ensued. At no point, was the suspect ever read his rights. While the Berkemer case was about when a person should be read his Miranda rights, the time of arrest language is still clear.

Though the United States Supreme Court found that a roadside stop to issue a traffic citation does not qualify as a formal arrest, but rather is only an investigatory stop, this did not end the analysis. The Court then set out to determine when the officer actually did arrest the suspect. It looked at the Officer’s intentions and found them irrelevant, holding as follows:

“Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”

But some courts in Ohio, even today, have been citing the Ohio Supreme Court’s conflicting rulings in the earlier cases of State v. Barker and State v. Darrah. In these cases, the Ohio Supreme Court focused on subjective standards regarding the officers’ intentions predating and were overruled by the United States Supreme Court’s ruling in Berkemer v. McCarty.

The Ohio Supreme Court stated that “An arrest, which must be supported by probable cause to be valid, is characterized by four elements: (1) an intent to arrest; (2) under real or pretended authority; (3) accompanied by actual or constructive seizure or detention; (4) which is so understood by the person arrested.” Thus the Ohio Courts have been improperly focusing on the internal beliefs of the both the arresting officer and the arrested suspect.

While these rulings employing this test are in error, they are still the law in Ohio until some brave soul goes to the United States Supreme Court and gets the Ohio Supreme Court reversed. As such, it is important to show how the courts have analyzed such issues. In the case of State v. Marshall, a suspect was arrested before he was given any Field Sobriety Tests. The Fifth District Court of Appeals reasoned as follows:

“The court found that there was probable cause for the arrest, although the court stated on the record that “perhaps the technical arrest should have occurred after the field sobriety tests.” Tr. 58-59. We reject the State’s argument that the arrest did not occur until appellant was handcuffed and placed into the police vehicle. The point when an investigatory stop turns into an arrest depends on the circumstances of the particular case. State v. Finch (1985), 24 Ohio App. 3d 38, 39, 492 N.E.2d 1254. An arrest occurs when four requisite elements are met: (1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. State v. Darrah (1980), 64 Ohio St. 2d 22, 26, 412 N.E.2d 1328.”

So when the prosecutor starts talking about the Ohio Supreme Court’s ruling in Darah, your attorney needs to have a copy of Berkemer with the important portion highlighted and ready for the judge.

If you need help with drunk driving charges anywhere in the state of Ohio, please don’t hesitate to contact me at 614.580.4316 or you can email me at I do take late night calls from the side of the road so don’t think I am going to be pissed if you need me at 3:00 in the morning.